Month: July 2017

“The doctrine of informed consent protects a patient’s bodily integrity and autonomy in determining what medical treatment to allow. The doctrine recognizes that a patient has the right to be informed by his or her physician of the risks and benefits attending a proposed course of treatment in order to enable the patient to make an informed decision about the treatment. To ensure informed consent, the physician has a duty to inform the patient about the risks, benefits, likelihood of success, and alternatives…The doctrine of informed consent developed through the common law under the theory that a surgery conducted without consent was a battery, and that, to be effective, a patient’s consent must be informed, i.e., based upon adequate information. Without the patient’s informed consent, the physician is liable for the procedure, regardless of whether the physician was negligent.” Shinal v. Toms, 31 MAP 2016 (PA 2017). Moreover, the Supreme Court of Pennsylvania has held that the physician may not delegate the responsibility of obtaining his or her patient’s consent to another person (e.g. a member of the physician’s staff such as a physician’s assistant or a nurse). The physician must communicate the risks, benefits, the likelihood of success, and alternatives by direct communication with the patient. In its opinion, the Supreme Court expressly stated that “[w]ithout direct dialogue and a two-way exchange between the physician and patient, the physician cannot be confident that the patient comprehends the risks, benefits, likelihood of success, and alternatives” and that “Informed consent requires direct communication between physician and patient, and contemplates a back-and-forth, face-to-face exchange, which might include questions that the patient feels the physician must answer personally before the patient feels informed and becomes willing to consent.”

No. You don’t. At least you don’t if there is nothing in your individual employment contract which gives you that right. There is a Pennsylvania statute which guarantees employees the right to inspect their personnel files but the statute only applies to current employees. You are not a current employee if you have been fired. According to the Inspection of Employment Records Law (also known as “the Personnel Files Act”), 43 P.S. §§ 1321-24, “An employer shall, at reasonable times, upon request of an employee, permit that employee or an agent designated by the employee to inspect his or her own personnel files used to determine his or her own qualifications for employment, promotion, additional compensation, termination or disciplinary action ….” In the case of Thomas Jefferson University Hospitals v. Pennsylvania Department of Labor and Industry, 30 EAP 2016 (PA 2017), it was argued that since the law provides for inspection of personnel files to determine qualifications for termination it must provide for inspection by former employees whose employment had been terminated. However, the Pennsylvania Supreme Court held that another section of the statute which defined employees, as follows, controlled: “Any person currently employed, laid off with reemployment rights or on leave of absence. The term ’employee’ shall not include applicants for employment or any other person. ” The court explained that the reference to access to qualifications for termination was not superfluous because in some instances current employees are given advance warning that they will be terminated.

Are you having problems with your landlord timely completing necessary repairs? You may find the case of Nexus Real Estate v. Erickson, 2017 Pa. Super. 180 of interest. In that case, the landlord’s property manager made numerous assurances that repairs would be performed and either performed no repairs at all or performed inadequate repairs. This failure left the tenant without heat for an entire winter, without air conditioning for an entire summer, and with a roof which leaked for months causing visible mold to grow and causing the tenant to cough. Also, during a construction project at the apartment building, the tenant’s water was turned off at least 25 times. Eventually, the tenant started paying his rent into an escrow account and the property manager then sued him for unpaid rent. The tenant responded by suing the property manager and the landlord, bringing claims pursuant to the Pennsylvania Unfair Trade Practices and Consumer Protection Law and breach of the warranty of habitability. The lawsuits were consolidated for a non-jury trial and the Court awarded the tenant $32,150 in damages consisting of $29,250 for violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law , which was a tripling of the $9,750 he had paid in rent, and $2,900 in attorney fees.

Melvin C. McDowell, Attorney at Law in law library at Bedford County Courthouse

My Bio

I live in Everett, Bedford County, Pennsylvania and am a member of the Bedford County Bar Association and the Pennsylvania Bar Association.

I concentrate my practice in general litigation, including commercial and business cases. I also have experience in insurance and personal injury litigation, as well as employment and discrimination litigation, estate litigation, guardianship proceedings, trademarks, and zoning. I also have handled state court and federal court appeals. In fact, I have more than 24 years of civil litigation experience.

Before commencing my legal career, I served as a Revenue Officer with the Internal Revenue Service where I was awarded the IRS Special Achievement Award. I also served as an Intelligence Officer in the U.S. Navy with Airborne Early Warning Squadron VAW-123.

I received my Bachelor of Arts in Political Science from the Pennsylvania State University and my Juris Doctorate from Temple University.

I am admitted to practice in all the state courts of Pennsylvania, as well as the United States District Courts for the Eastern District of Pennsylvania, and the Western District of Pennsylvania. I am also admitted to practice before the U.S. Court of Appeals for the Third Circuit.

Reported Cases

The following are cases with published opinions where I was counsel for one of the parties:

Disclaimers

Posts and comments on this blog are only for general educational purposes. None of my posts or comments on this blog should be construed as giving legal advice. For reasons of simplicity and easy understanding, posts may omit discussion of exceptions or qualifications which may be relevant to the reader’s particular circumstances. Similarly, any links to legal resources from this website are for general educational purposes only and may not be up to date at the time you read the linked information. You should not rely upon such for legal advice.

You are not my client and we have not created an attorney/client relationship unless I have provided you a written engagement agreement which you have signed and returned to me, and I have acknowledged the receipt of such document.

Any comments appearing on this blog which are not my own should not be construed as representing my opinions. Furthermore, my allowing comments by others on this blog should not be construed as my agreeing with or endorsing such comments.